Telecommunications Interception and Access

Posted by Joanne Ryan Mp on March 18, 2015

I rise to speak on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014. I, like most of my Labor colleagues, have worked long and hard to come to grips with the complexities of this issue. We have tried to be as responsive as we can to our own concerns, the shared and individual concerns of the caucus, as well as the shared and individual concerns of the community. It is a complex issue and it is one that takes time and energy to come to grips with. I am not a lawyer—I know there have been many with a background in law who have spoken on the bill today. I was a teacher, so for me the process in going through this is based around common sense. I am not au fait with the intricacies of the law, but I can understand the common-sense argument. So I rise tonight to give some understanding as to how and why I have come to the decision to support this bill.

When the legislation was first introduced by Minister Turnbull, it was clear that additional sensible amendments were needed. It was clear, even to someone without a law degree, that what was put before us for consideration did not have checks and balances, did not have the appropriate balance between personal freedoms and community safety. It was interesting to hear the member for Moncrieff talking about the positions that the coalition took, when they were in opposition, on the work done earlier by the Labor government. It was interesting to note that Minister Turnbull said in 2013 that he thought the legislation in this area would have a chilling effect on free speech and that he must record his grave misgivings about the legislation that was put before the coalition by the Labor government.

But I think we have all moved a long way since then. And we have done that because of the hard work of the Labor Party in the months since we managed to get the legislation referred to the Joint Parliamentary Committee on Intelligence and Security. Across those months, all of us on this side of the chamber have worked hard to understand this. We have engaged in long conversations with the members of that committee about the progress of the recommendations, about the hearings that were held, about the stakeholders that were listened to and about the very careful and deep consultation and discussion that was occurring not only among the members of that committee but also in public hearings and with the parliament.

I am reminded of one of the first conversations I had about this legislation, which was with the member for Gellibrand, who is on our side and acknowledged as having a degree of expertise in this area. I was surprised when the member for Gellibrand explained to me that, under the current system, my local council could be accessing metadata that tells them who I am ringing, how long the calls are and where I am when I am making those calls. I am sure most people in the community have similar feelings and misgivings about unsworn officers accessing our metadata. These people are not members of our police forces or security agencies, they are not people who have been trained, sworn and have protocols and protections and accountabilities in place in their organisations. Of course, I was also reminded that my local council was one of the councils that had authorised its officers to access the metadata of residents and that they had done this through telcos. This goes to the core of why we are all standing here today to pass this legislation. The current situation is that councils and others, as many have been on their feet to talk about today, can do that.

Wyndham City Council could come in here as they did with me when I spoke to them about this when it hit the press. When Wyndham City Council did this, they were the only Victorian council to have done it and they encountered enormous backlash from both their own community and the broader picture and community. If you listen to the story of why they accessed the metadata of residents, their rationale was not sinister. They had someone who had been attacked by a dog, and the owner of the dog left their mobile number but then fled. Wyndham City Council sought to find that dog owner through the people who register dogs. This work may have been better referred to the police. I am sure everyone in this chamber now would argue that the legislation before us is reasonable because in that situation it would be referred to the police and it would be sworn officers of the police department who seek that metadata. And Wyndham City Council were not alone. Other councils did similar things. There was also access by authorities such as Work Safe.

What I have learnt across the last three or four months is that in the current situation the bar has been set too low. It is too easy for people to make what the member for Griffith calls warrantless access applications. We know that in the last year there were half a million access requests granted. That is an enormous number, and the public need to know that this legislation will change the current situation, that we are looking at an area that is largely unregulated and that we are moving to a space where there will be regulation.

I have listened with great interest in recent months and today as members on this side of the House have talked about the work of the security committee. I acknowledge the work of my colleagues on that committee, because the shape of this legislation now after that hard work is about consistency—consistency about keeping the data; that it will be two years for all data. There will not be an influx of people leaving one company for another to get around the basics of this legislation. There will be consistency around the type of data that is kept and, as we have heard all day, that is when talking on the phone: whom you were speaking to, where you were and for how long you were speaking. We have an understanding that emails will not include the content line.

I have to join my colleagues and mention that it has been disappointing that the legislation was first rushed into this parliament in no state for debate and in no state to become law. It was done so under the presumption of terrorism, when in fact it has come to light that metadata is used minimally against terrorism but, most importantly, all the time in fighting crime and assisting our police and other agencies to prevent crime and find the perpetrators of crime after the fact.

We have made some wonderful improvements during these three months. I want to assure the people in my community—the young people in my community who have concerns about metadata being used in civil litigation and families concerned that metadata could be used in family law courts—that one of the changes that will be brought down is that the limitations will be around criminal legislation, not civil action. That is a really important thing to stress.

It is also important to stress the other changes that go to the core of why this legislation was not ready when it was rushed into the parliament. One of those issues is around the notion that the dataset, or the parameters of what was going to be retained, could be changed by regulation. I welcome the amendments, because it will not be the case that we will have to come back to this place, and any changes will have to be passed in the parliament. I also note the important inclusion of ASIC and the ACCC being able to access metadata to facilitate the prosecution of white-collar criminals. This is something that the community will appreciate.

The other improvement is around requiring telecommunications companies to provide consumers with access to their own metadata upon request. This could be used in any individual's defence in terms of proving where they were or where they were not. So it could have a personal use for members of the community.

As many of us have said today, the other important thing is—having just read about some of the breaches of privacy in the UK over the last several years that have culminated in prosecutions—that we will also be implementing a mandatory data breach notification scheme, where, if individuals have had their data breached, it will be law that telco companies notify them that there has been a breach in their privacy, that someone has accessed their data without proper consent. This is really important and it will bring some comfort to people.

I think this legislation is about finding the balance between personal freedoms and collective safety, and I thank the Labor Party for the work that they have done to get it into a space where the community—my community—will accept this as being for the good of our community.

There are lots of other issues. The data will now be encrypted—currently, it is stored and not encrypted—and that is another level of safety. There is an agreement to have a comprehensive inquiry into the potential impact of data retention on the freedom of the press, and that we come into a place where those warrants will have to be used to access the metadata of journalists. This shifts responsibility from the Attorney-General—or, let me be blunt, from any politician in this place—to a member of the judiciary in cases where the police can show cause and be given a warrant to access the metadata of journalists.

There are other concerns not so much around personal freedoms or personal privacies but around the cost to business. We have commitments from the government that this will not become a digital data tax and that measures will be put in place to support companies and to ensure that this does not become an unfair burden on smaller businesses and start-ups. We need start-ups and innovation in this area to drive our country and our economy forward.

The other contentious issue is around offshore and onshore storage. There have been long conversations on this, and we are looking for guarantees that that storage will be onshore and stored in Australia. There have been long conversations in our caucus, in the community and in the security committee. I hope there have been similar conversations across the chamber.

There are many amendments to the original legislation that was put before us—all of them are improvements, including giving oversight to the Ombudsman, and guarantees that there will be sufficient funding and resources for the Ombudsman to ensure the oversight occurs efficiently.

So, I see this as being quite a long journey to get here, but it is a beginning, really. It establishes the necessary balances between personal freedoms and community safety. It establishes a standard for independent oversight. And it is critical, going forward, that we have behind us, as a parliament, the community's trust that we can deal with complex issues, that we can respect their concerns, that we can work together in the joint committee and that the joint committee will be part of the oversight going forward. That, I think, gives some comfort to the community, and certain sections of the community are very anxious about this legislation. I support the amendments, as they have much improved what many of us on this side have said was a shabby piece of legislation. But what we have before us tonight is an improvement on the current unregulated status quo. It will protect Australians, it will help us fight crime and it will protect our privacy and our safety as well. I commend the bill to the House.